Bullies, superheroes in drilling battle

Tuesday

Sep 3, 2013 at 11:54 AMSep 3, 2013 at 11:54 AM

Peter Mantius

It’s chilling to watch private industry seize the reins of government and steer it down a dark and dangerous back alley of self-interest. But it happens. That’s why we need real-world superheroes like Helen and David Slottje. They help us sort out right versus wrong.Helen and David live in Ithaca. They are lawyers who are married to each other. They are probably underpaid in money but well rewarded in gratitude from those who have bothered to acquaint themselves with the natural gas industry’s efforts to manipulate the legal landscape in New York State.A few years ago, that industry began an aggressive push to gain land rights in the Southern Tier so it could begin fracking the gas-rich Marcellus shale. Landmen working for companies like Chesapeake Energy fanned out across the region to peddle lease deals to naively expectant landowners.Lease-granting landowners – many of whom were also local politicians – readily bought in to the industry promise that a fracking boom would mean an economic boom for upstate New York (on top of personal riches for them). Many organized into coalitions, which served as uncritical local lobbies for the industry’s agenda.Meanwhile, gas industry agents had been working in Albany, corralling state senators and reinforcing old loyalties at the state Department of Environmental Conservation in a bid to build a broad legal foundation for widespread fracking.Three of its key legal principles would be:- The landowner has a basic right to exploit his or her privately-owned gas resources, and that right supersedes others’ rights to be protected from damage caused by fracking activities.- State bureaucrats at the DEC have the final say over where a gas well can be drilled, superseding all powers of local governments.- DEC bureaucrats may grant a gas company the authority to drill on property that hasn’t been leased, even if the property owner is adamantly opposed.Together, the three principles amounted to an extremely aggressive legal agenda aimed at stripping rights from anyone opposed to the gas industry’s drilling schedule. That includes landowners who fear the environmental risks of fracking and those who simply want to wait to try to frack later at a better price.For quite a while, fracking’s legal foundation seemed firm enough. Gas drillers held – and still hold – virtual veto power over proposed state legislation on fracking through a majority in the Republican-controlled Senate. And drillers have a long history of successfully manipulating the DEC.By 2010, evidence was piling up from fracking operations in Pennsylvania that fracking was dangerous to the environment and human health, and New York State wasn’t rushing to allow it. Several municipalities in the Southern Tier began exploring the possibility of holding off fracking with a local moratorium, or even a permanent ban. The industry responded with threats to sue any city, town or village that dared try. Many local boards feared an avalanche of legal bills and did what little kids usually do when confronted by a schoolyard bully: they slunk away. But the Town of Dryden stood up to the industry’s legal threats and banned fracking within its borders. As expected, the industry huffed and puffed and filed suit and promised to roll to victory in court. To do so, they needed to roll over the Slottjes too. But the Slottjes had read the law. All of it. They’d developed a legal theory, which Dryden adopted, that said the DEC lacked the authority to supersede municipal zoning powers that gave towns the right to ban unwanted activities. So the law gave the DEC authority to say how to drill, and local boards got to say where to drill.The court sided with Dryden and the Slottjes. In a huff, industry appealed. In May, the industry lost that appeal 4-0. The drillers haven’t yet exhausted all their appeal options, but like a bully who’s been poked in the eye, their hunger for confrontation has abated considerably.Peter Mantius is a freelance journalist who resides in Schuyler County and follows Marcellus Shale gas drilling issues.